DEPARTMENT OF THE AIR FORCE AIR COMBAT COMMAND SEYMOUR JOHNSON AIR FORCE BASE GOLDSBORO, NORTH CAROLINA and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-188

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

DEPARTMENT OF THE AIR
FORCE

AIR COMBAT COMMAND

SEYMOUR JOHNSON AIR FORCE
BASE

GOLDSBORO, NORTH CAROLINA

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188

Charging
Party

Case No. WA-CA-02-0005

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
submitted to the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
undersigned herein serves his Decision, a copy of which is attached
hereto, on all parties to the proceeding on this date and this case
is hereby transferred to the Federal Labor Relations Authority
pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions must be filed
on or before

OCTOBER 20, 2003, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

1400 K Street, NW, Suite
300

Washington, DC
20424-0001

_____________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: September 17,
2003

Washington, DC

UNITED
STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: September
17, 2003

TO: THE FEDERAL LABOR RELATIONS
AUTHORITY

FROM: WILLIAM B. DEVANEY

ADMINISTRATIVE LAW JUDGE

SUBJECT: DEPARTMENT OF THE AIR
FORCE

AIR COMBAT COMMAND

SEYMOUR JOHNSON AIR FORCE
BASE

GOLDSBORO, NORTH
CAROLINA

Respondent

and Case No.
WA-CA-02-0005

NATIONAL ASSOCIATION OF
GOVERNMENT

EMPLOYEES, LOCAL R5-188

Charging Party

Pursuant to section 2423.27(c) of
the Final Rules and Regulations, 5 C.F.R. § 2423.27(c), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed is a Motion for Summary Judgment and
other supporting documents filed by the parties.

Enclosures

OALJ 03-46

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.

DEPARTMENT OF THE AIR
FORCE

AIR COMBAT COMMAND

SEYMOUR JOHNSON AIR FORCE
BASE

GOLDSBORO, NORTH CAROLINA

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188

Charging
Party

Case No. WA-CA-02-0005

Major Ferdinando P.
Cavese

For the Respondent

Philip T. Roberts,
Esquire

For the General
Counsel

Before: WILLIAM B.
DEVANEY

Administrative Law
Judge

DECISION

Statement of the Case

This proceeding, under the Federal
Service Labor-Management Relations Statute, Chapter 71 of Title 5
of the United States Code, 5 U.S.C. § 7101,etseq.214039281,
and the Rules and Regulations issued thereunder, 5 C.F.R. §
2423.1etseq., concerns
whether Respondent violated the Statute when, after the Union had
invoked arbitration of a grievance, it unilaterally initiated a
telephone call to the grievant about the grievance. For reasons
fully set forth hereinafter, I conclude that it did.

This case was initiated by a charge
filed on October 3, 2001 and by an amended charge filed on July 5,
2002. The Complaint and Notice of Hearing issued July 18, 2002,
and set the hearing for January 30, 2003, at a place to be
determined in Raleigh, North Carolina. By Order also dated July
18, 2002, this case was transferred to the Chicago Regional Office.
On January 15, 2003, the Chicago Region issued a Notice fixing the
place of hearing in Goldsboro, North Carolina, on January 30,
2003.

On January 17, 2003, Respondent
filed a Motion For Summary Judgment together with a Brief In
Support of Motion For Summary Judgment. On January 23, 2003,
General Counsel filed a Motion To Postpone Hearing and stated that
he agreed that a hearing was not necessary. Accordingly, on
January 23, 2003, the Chief Administrative Law Judge issued an
Order postponing the hearing indefinitely; directing the parties to
submit an agreed statement of facts; granting General Counsel until
February 5, 2003, to respond to Respondent's Motion and Brief and,
if he elects, to file a cross motion for summary judgment; and
advising all parties that this case will be decided on Motion For
Summary Judgment.

On February 5, 2003, General
Counsel filed an agreed Statement of Facts and a Cross Motion For
Summary Judgment. On February 6, 2003, Respondent moved to strike
from General Counsel's Cross Motion his reference to an ALJ
decision which had become final in the absence of exceptions.
While it is true that the Authority's Order states,

". . . the findings, conclusions
and recommendations of the Administrative Law Judge constitute,
without precedential significance, the findings, conclusions, and
decision and order of the Authority." Fort Sam Houston, San Antonio, Texas and National Federation
of Federal Employees, Local 28, 6-CA-10893,
6-CA-10894 (November 6, 1992), 105 ALJ Dec. Rep., Nov. 6,
1992),

there is no impropriety in General
Counsel citing a final ALJ Decision. Such decision has no binding
effect; nevertheless, it may be persuasive. It is especially
appropriate in this case because the decision in question, to which
General Counsel has drawn attention, was my own decision.
Accordingly, Respondent's Motion To Strike is denied.

Agreed Statement of
Facts

1. The National Association of
Government Employees, Local R5-188 (Union) is the exclusive
representative of an appropriate bargaining unit of employees at
the Seymour Johnson Air Force Base, Goldsboro, North Carolina
(Respondent). The Respondent is an activity within the Department
of the Air Force, which is an agency under 5 U.S.C. § 7103(a)(3),
and Respondent is thus subject to the Authority's
jurisdiction.

2. At all times material herein,
the Union and Respondent have been parties to a collective
bargaining agreement which includes a grievance and arbitration
process. (Jt. Ex. No. 1).

3. On May 22, 2001, Ms. Kristie
Sly, a bargaining unit employee at the Respondent, received a
notice of a proposed 3-day suspension. (Jt. Ex. No. 2). Ms. Sly
replied to the notice on May 30, 2001 (Jt. Ex. No. 3). On July 12,
2001, the Respondent issued its decision to suspend Ms. Sly for 3
days. (Jt. Ex. No. 4).

8. On August 16, 2001, Respondent's
Civilian Personnel Officer, Jean Tucker, after having received the
Union's arbitration request referred to in paragraph 7, telephoned
Ms. Sly while she was working at Respondent's Fire Station. A
transcript of the entire telephone conversation was obtained from
the Fire Station tapes and is attached hereto as Jt. Ex. No.
8.

9. Ms. Tucker did not notify the
Union and obtain its consent to Ms. Tucker's telephone conversation
with Ms. Sly referred to in paragraph 8.

Conclusions

As I stated inFort Sam Houston, San Antonio, Texas and National Federation
of Federal Employees, Local 28,supra,

"Upon receipt of the grievance, any
discussion, questions, or argument, management had relating to the
grievance, or the procedure in filing the grievance, should have
been addressed to the Union and not directly to . . . [the
employee]. Dealing directly with the employee on a grievance in
which the Union has been designated as the representative for the
employee has consistently been held to be a bypass and a violation
of the Statute. Social Security
Administration, 16 FLRA 434, 435
(1984);438thAir Base Group (MAC), McGuire Air
Force Base, New Jersey, 28 FLRA 1112,
1121-1123 (1987)" (hereinafter, "McGuire AFB").

The level of the grievance is
immaterial - it may be before an actual grievance is filed, when
the Union sought informally to resolve a dispute,U.S. Department of Justice, Bureau of Prisons,
Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1345 (1996) (hereinafter, "Bastrop, Texas");
at the point, after the grievance has been filed, with Union
representation, when the grievance was rejected because the job
sought was outside the bargaining unit and grievance must be filed
under the Agency Grievance Procedure, and the agency contacted the
grievant for information,Department of
Health and Human Services, Social Security Administration,
Baltimore, Maryland and Region X, Seattle,
Washington, 39 FLRA 298, 299-302 (1991)
(hereinafter, "HEW Region X"), at the point of delivery of a final
decision to the grievant only,Department
of the Air Force, Sacramento Air Logistics Center, McClellan Air
Force Base, California, 35 FLRA 345 (1990),
or here, at the point following invocation of arbitration by the
Union, when Respondent called the grievant for
information,

" Agencies unlawfully bypass an
exclusive representative when they communicate directly with
bargaining unit employees concerning grievances, disciplinary
actions and other matters relating to the collective bargaining
relationship. . . . Such conduct constitutes direct dealing with an
employee and is violative of section 7116 (sic)[a](1) and (5) of
the Statute because it interferes with the union's rights under
section 7114(a)(1) of the Statute to act for and represent all
employees in the bargaining unit. Such conduct also constitutes an
independent violation of section 7116(a)(1) of the Statute because
it demeans the union and inherently interferes with the rights of
employees to designate and rely on the union for representation. .
. ."HEW, Region X, 29 FLRA at 311.

I fully agree with General Counsel
that Respondent attempts to distinguish these cases by offering a
thoughtful, if novel, interpretation of the Authority's bypass
decisions. According to this theory, the Judge must look to see
whether the employee's position or status has changed as a result
of the communication by the agency. If it has, then an unlawful
bypass has occurred. While this interpretation is interesting it
has no grounding in the actual basis for the Authority's decisions.
Instead, the theoretical underpinning of the Authority's bypass
decisions is far simpler: when the union is actingquaexclusive
representative, the agency must deal with it alone and not the
bargaining unit employees. See,McGuire AFB,supra, 28 FLRA at
1122.

In its cross-motion for Summary
Judgment, General Counsel makes no reference to § 14(a)(2)(A), nor
of a possible violation of § 16(a)(8) and I do not address this
matter.

Having found that Respondent
violated §§ 16(a)(5) and (1) and also, independently, violated §
16(a)(1), it is recommended that the Authority adopt the
following:

ORDER

Pursuant to § 2423.41(c) of the
Rules and Regulations of the Federal Labor Relations Authority, 5
C.F.R. § 2423.41(c), and § 18 of the Federal Service Labor-
Management Statute, 5 U.S.C. § 7118, the U.S. Department of the Air
Force, Air Combat Command, Seymour Johnson Air Force Base,
Goldsboro, North Carolina, shall:

1. Cease and desist
from:

(a) Failing and refusing to
bargain in good faith with the Union by bypassing the Union and
communicating directly with a bargaining unit employee concerning a
grievance/arbitration matter.

(b) Interfering with the right
of its employees to rely on the Union to handle and process the
arbitration of their grievances through the negotiated grievance
procedure.

(c) In any like or related
manner, interfering with, restraining, or coercing its employees in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

2. Take the following affirmative
action in order to effectuate the purposes and policies of the
Federal Service Labor-Management Statute:

(a) Post at its facilities,
copies of the attached Notice on forms to be finished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Commander of the U.S. Department of the
Air Force, Air Combat Command, Seymour Johnson Air Force Base,
Goldsboro, North Carolina, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
such Notices are not altered, defaced, or covered by any other
material.

(b) Pursuant to section
2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. §
2423.41(e) notify the Regional Director of the Chicago Region,
Federal Labor Relations Authority, 55 West Monroe, Suite 1150,
Chicago, Illinois 60603-9729, in writing, within 30 days of the
date of this Order, as to what steps have been taken to
comply.

_____________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: September 17,
2003

Washington, DC

NOTICE
TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS
AUTHORITY

The Federal Labor Relations
Authority has found that the U.S. Department of the Air Force, Air
Combat Command, Seymour Johnson Air Force Base, Goldsboro, North
Carolina, violated the Federal Service Labor-Management Relations
Statute and has ordered us to post and abide by this
notice.

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOTfail and refuse to bargain in good faith with the Union by
bypassing the Union and communicating directly with a bargaining
unit employee concerning a grievance/arbitration matter.

WE WILL NOTinterfere with the right of employees to rely on the Union to
handle and process the arbitration of their grievances through the
negotiated grievance procedure.

WE WILL NOTin any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.